The Unconstitutional Living Constitution Theory

Discussion in 'Politics' started by ihopehefails, Jan 21, 2010.

  1. ihopehefails
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    ihopehefails BANNED

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    The living constitution theory believes that the constitution changes due to the politics of the times and interpretations are treated as legally powerful as the actual text which is why most proponents of the living constitution quote case law alone and never the actual words in the document. It allows the constitution to be distorted by the opinions of the justices on the bench thus changing it from what the creators of the actual law intended.

    The constitution clearly states that the only way it can be altered is by the amendment process which can be done three ways. Two of them are by the legislative branch of the federal government and the third is by a conventions of the states. These are the only constitutional ways you can alter constitution's meaing so when people believe that the courts can alter it by their 'interpretation' they are assuming that the courts have powers that the constitution does not give them.

    This makes living constitution theory unconstitutional since the meaning of the document can't be altered by the opinion of the courts. It can only be altered by the amendment process and that power is only granted to the legislative branch. They are the ones that create the law while the courts judge cases by what has been created by the legislative branch.
     
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  2. jillian
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    jillian Princess Supporting Member

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    So you think you know more than 200 years of Justices about what the Constitution means and how it should be construed?

    okie dokie.

    I think they call that delusions of grandeur.
     
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  3. Luissa
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    Luissa Annoying Customer Supporting Member

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    I personally think Jefferson would not agree with.


    I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Thomas Jefferson
     
  4. lawbuff
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    lawbuff Member

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    I do not agree. Take for instance the FFC clause:


    ...Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof..

    Is this not a direct constitutional authority for Congress to change the constitution to conform to FFC? DOMA is just such an example.

    Also, after many AM's, does it not say "Congress shall have power to enforce this by appropiate legislation", or some such words. I did not look to quote.

    If they enforce it, they may also slip in provisions that, until ruled UNconstitutional, are legal.
     
  5. Luissa
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    Luissa Annoying Customer Supporting Member

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    Even though John Marshall didn't see it as living document, when he became Chief Justice I think he made it into a living document if that makes sense. I think the framers created a document through interpretation could with stand time, and I think they wanted it that way. These men were not stupid and knew that the country would change.
    A good example of it being a living document would be seperate but equal.
     
  6. lawbuff
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    lawbuff Member

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    Also CJ Marshall, in Barron v. Baltimore, 1833, ruled the Bill of Rights did NOT apply to the states, yet today, overturning Barron, most of it does.
     
  7. Big Black Dog
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    Big Black Dog Gold Member Supporting Member

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    I don't think anybody in Washington these days cares about what the Constitution has to say. They certainly don't conduct business that way.
     
  8. lawbuff
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    lawbuff Member

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    You got that right. I just read on the news where they want to raise the debt ceiling another 1.X trillion, to 14 something. Is this what a Democracy is? This can never be paid down, the annual interest payment alone is mind boggling. This will last into the 22nd century, and the kids growing up now have no idea what has been done to them by idiots.
     
  9. rightwinger
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    rightwinger Paid Messageboard Poster Gold Supporting Member Supporting Member

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    Why bother with a Supreme Court then?

    To treat the Constitution like a fundamentalist treats the Bible was never the original intent
     
  10. Darkwind
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    Darkwind Gold Member

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    Okay, I can see and agree with that.

    But the process and mechanism for doing just that has been in place since we were that 'boy in the short pants.'

    The only real requirement for change is for an argument to be persuasive enough to get a majority of the elected representatives and a majority of the states to agree.

    After all, if it is necessary that we have this change as a society, then it should be apparent to all of society, no? Or at least a significant number of them that change can be effected.
     

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